ARTICLES : PROHIBITION - EXPLOITATIVE ABUSES - EXCESSIVE PRICES - CONSUMERS - PRIVATE ENFORCEMENT

Exploitative abuse: The end of the Paradox ?

KEYWORDS

Whilst the prohibition of exploitative abuse - in particular, of excessive pricing - is normally the most protective of consumers, it is the least frequently prosecuted offence. This paradox, which is justified by the existence of strong conceptual objections and practical difficulties, may appear immutable. However, despite the appealing character of the current state of play, some recent signals may suggest a possible revival of exploitative abuse. The present article proposes to analyse those signals. It also advocates a calibrated «revamping» of exploitative abuse and sets out some reflections on how its implementation could be improved, in particular in the perspective of the development of private enforcement.

1. As pointed out by B. Lyons, [1] no better word than «Paradox» can be used to qualify the current approach to exploitative abuse in Europe. 2. The Paradox lies in the «exclusion» of exploitative abuse which is the most directly concerned with consumer harm since it encompasses all conducts by a dominant company resulting in direct loss of consumer welfare (e.g., excessive prices, unfair discrimination) whilst exclusionary abuse covers behaviour impairing the market structure which only indirectly harms consumers. This exclusion is twofold: exclusion from the Commission Guidelines on the application of Article 82 EC (now 102 TFEU) [2] and rare applications by European Competition Authorities. 3. A few years ago, when discussions on the draft 82 EC Guidelines were on-going, valuable

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